BARRISTER

The Convening Authority (respondent) v Private William Doyle (appellant).

Criminal Law Court martial Statutory presumption Shifting burden of proof "Unless contrary is proved" Absence from post for longer than six months with no authority Presumption of intention to desert Burden upon accused Onus of proof upon an accused less than that of prosecution Burden discharged by evidence which satisfies jury of probability of that which accused is called upon to establish Presumption of innocence Whether judge advocate's direction correct Defence Act 1954 (No 18, Sections 135, 135(2) (a) (iii) and 135 (2)

The Courts Martial Appeal Court (before Mr Justice O'Flaherty, Mr, Justice Flood and Mr Justice McCracken) judgment delivered 26 January 1996.

IN criminal matters, when a matter is to be presumed against an accused "unless the contrary is proved", the jury should be directed that (a) it is for them to decide whether the contrary has been proved (b) the burden of proof upon the accused is less than that required from the prosecution and (c) the burden is discharged, by evidence which satisfies the jury of the probability of that which the accused is called upon to establish. Such a burden is not inconsistent with the presumption of innocence.

The Courts Martial Appeal Court so held in dismissing the appellant's appeal against the decision of the court martial, which said appeal was on the grounds that the summing up of the judge advocate was incorrect in law.

Fergal Kavanagh BL for the appellant Fergal Foley BL for the respondent.

MR JUSTICE O'FLAHERTY, delivering the judgment of the court, noted that the appellant", was absent from his post from 5 March 1983 until 27 June 1995. He noted that the appellant that he had always intended returning to his unit and had, never formed an intention of remaining absent. His reasons for his absence were that he had an alcohol problem and also that he felt that he was being "persecuted" by his superior officers.

Pursuant to section 135 of the Defence Act 1954, he was convicted of the offence of deserting the Defence Forces by a court martial and was discharged from the force.

The appellant appealed against this judgment on the grounds that the judge advocate's direction was incorrect and breached the presumption of innocence.

Section 135(2)(a)(iii) provides that a person deserts the Defence Forces "if he absents himself without due authority from, his unit or formation or from the place where his duty requires him to be, with the intention of not returning to that unit, formation or place."

Section 135(2)(b) provides inter alia that "a person who has been absent without authority for a continuous period of six months or more shall, unless the contrary is proved, be presumed to have had the intention of not returning to his unit or formation or the place where his duty requires him, to be."

Mr Justice O'Flaherty noted that, in his summing up, the judge advocate had directed as follows a statutory presumption has been raised that the accused had the intention of not returning to the place where his duty required him to be. The accused may, however, rebut that presumption by evidence. Whereas the prosecution must establish the guilt of the accused beyond reasonable doubt, the same degree of proof is not required of the accused in rebutting such a presumption as has been raised. It is enough if the accused satisfies you of the probability that he had not the intention of remaining away from the place where his duty required him to be. If he does so you must find him not guilty of desertion."

Referring to R v Carr Briant [1943] 1 KB 607, Mr Justice O'Flaherty stated that the judge advocate's direction on the meaning of "unless the contrary is proved" was correct in law in that it made clear to the jury that it was for them to decide whether the contrary was proved, that the burden of proof is less than that required from the prosecution and that the burden could be discharged by evidence which satisfied the jury of the probability of" that which the accused was called, upon to establish.

He distinguished O'Leary v Attorney General [1995] 1 IR 254, as that case was not concerned with the shifting of the burden of proof.

Solicitors The Chief State Solicitor (Dublin) for the respondent Barry Bowman & Co. (Dublin) for the appellant.